Afghan Washington Construction Company ( 2018 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Afghan Washington Construction Company ) ASBCA No. 60856
)
Under Contract No. W5K9UR-l O-C-7085 )
APPEARANCE FOR THE APPELLANT: Mr. Miya Mohammad*
President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Douglas A. Reisinger, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE
GOVERNMENT'S MOTION TO DISMISS FOR
LACK OF JURISDICTION AND STANDING
The Department of the Army (government) has moved to dismiss this appeal,
arguing that the individual representing himself as Miya Mohammad is not an authorized
representative of the contractor, Afghan Washington Construction Company (A WCC).
We grant the motion, and dismiss the appeal.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 23 June 2010, the government awarded Contract No. W5K9UR-10-C-7085
(7085 contract) to A WCC for the construction of facility structures in Helmond
Province, Afghanistan. The contract indicated that Miya Mohammad, the general
director of A WCC, was the person authorized to sign the contract. (R4, tab I at 1-2, 5)
2. Invoices issued during performance identified A WCC's email address (email
address No. 1) (R4, tab 4 ). Likewise, emails to Mr. Mohammad during contract
administration were sent to and received from email address No. 1 (R4, tabs 8, 11, 19).
3. On 9 December 2011, the government terminated the contract for default (R4, tab 21 ).
4. On 18 July 2016, the Board received via email a notice of appeal from an
* As discussed in greater detail below, the individual representing himself as
Miya Mohammad is not, in fact, Miya Mohammad, and is not an authorized
representative of A WCC.
unidentified individual whose email address was similar to, but not the same as, email
address No. 1 (email address No. 2). We responded by inquiring about the identity of
the individual filing the notice of appeal. That individual replied by indicating that he
was Miya Mohammad, the president of A wee. (R4, tab 24 at 6-7)
5. By email dated 2 August 2016, an individual representing himself as
Miya Mohammad submitted a claim to the contracting officer from email address
No. 2 (R4, tab 27 at 1-2).
6. Noticing that the email address No. 2 was different from email address No. 1,
the government contacted Mr. Mohammad at email address No. 1. The email informed
Mr. Mohammad of the appeal, and noted the email address discrepancy. The government
inquired whether the email address No. 2 was accurate for representing A wee. (Gov't
mot., ex. 2 at 1)
7. Mr. Mohammad responded that "[ f]or your kind information, the ... email
address [No. 2]. .. [is] not related to my company and it's a fake email" (gov't mot., ex.
2 at 1).
8. Mr. Mohammad also provided a declaration. In that declaration, the real
Mr. Mohammad verified his identity and authority to act on behalf of A wee by
providing a copy of A wee's Afghanistan Investment Support Agency license, which
identifies him as the president. Mr. Mohammad declares that, while he may seek to
file a claim in the future:
I did not submit this claim [pending before the Board], nor
did any other corporate officer of A wee. This claim was
submitted from the email address [No. 2]. That is a fake
email address not affiliated with A wee in any way. I
have never used, or even had access to, [that email
account]. ... The claim submitted from [email address
No. 2] is not from me and is fraudulent.
(Gov't mot., ex. 3) We find that the declaration submitted by A wee's president
establishes that the individual representing himself as Mr. Mohammad who filed the
notice of appeal is not the Mr. Mohammad who is A wee's president, and therefore is
not authorized to bring this appeal on behalf of A wee.
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DECISION
We do not possess jurisdiction because the individual representing himself as
Mr. Mohammad is not an authorized representative of A WCC. Under the Contract
Disputes Act (CDA), we possess jurisdiction to adjudicate appeals taken by a
contractor. 41 U.S.C. § 7104. A contractor is a party to a government contract other
than the government. 41 U.S.C. § 7101(7). "[I]n order for this Board to have
jurisdiction over a dispute involving [a] contract, a duly authorized representative of
[the contractor] would have to bring a timely appeal." William Reisner Corp., ASBCA
No. 39944, 90-3 BCA, 23,144 at 116,194; see also Board Rule 15(a) (stating that a
corporate contractor may be represented only by an officer or attorney).
Here, A WCC was the party to the 7085 contract other than the government, so
A WCC is the contractor (SOF , 1). However, the individual representing himself as
Mr. Mohammad is not a duly authorized representative of A WCC pursuant to Board
Rule l 5(a), has not demonstrated that he is a party to the subject contract, and is not a
contractor under the CDA (SOF ,, 7-8). Therefore, we do not possess jurisdiction
over this appeal.
CONCLUSION
This appeal is dismissed.
Dated: 20 March 2018
.JMESR. SWEET
Administrative Judge
Armed Services Board
of Contract Appeals
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60856, Appeal of Afghan
Washington Construction Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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